Employment lawyer explains why ‘doing the right thing is almost invariably doing the wrong thing’ when it comes to progressive discipline
When it comes to discipline and just cause dismissals, there is no room for being nice, and an Alberta labour board decision from last week perfectly illustrates this.
The decision saw an insubordinate employee awarded damages for wrongful dismissal, because the employer failed to thoroughly document disciplinary action before firing him for just cause.
The board’s decision detailed how the employer preferred to rely on “verbal coaching”, and that “If they documented every instance of wrongdoing, it would be debilitating to the employer/employee relationship.”
Howard Levitt, employment lawyer with Levitt LPP, says that this is a common mistake employers make when disciplining employees: being too lenient, and not documenting consistently.
“I have a saying that I tell my corporate clients: 'Doing the right thing is almost invariably doing the wrong thing,'” he says.
“Trying to be nice is going to come back and bite you. You've got to be tough, you've got to be relentless.”
Verbal warnings don’t cut it – put it in writing
In the decision, X-treme Packaging Services Inc. v. Savoie, the board found that the employer’s informal approach to discipline – opting for verbal coaching and avoiding written warnings – ultimately undermined its case.
There were “a number of times on various matters” including a quality complaint and performance issues, in which the employee had been spoken to verbally. However, it was admitted by a supervisor that there was no formal documentation of any of these instances.
A first written warning was issued for disrespectful behaviour, but the board describes how the form was incomplete: “Although a description of the infraction was provided… the box for ‘Plan for Improvement’ was left blank. There was also no warning on what would happen if that improvement did not occur,” and there were no further issues with the employee until the events surrounding his termination.
For Levitt, these facts confirm that, except in the most egregious of circumstances, employers must give employees a clear warning that their job is in jeopardy, including a chance to address the infraction and improve.
“That can be done in the context of a performance improvement plan or can just be done in the context of progressive discipline,” he says.
“It should be done in the context of a warning, and the warning had better be in writing, otherwise it's going to be harder to prove.”
The role of performance improvement plans
There are two instances where just cause for dismissal can be established: conduct so egregious that it warrants immediate dismissal, or a series of lesser misconduct that must be addressed with sufficient warning leading up to a dismissal.
Performance improvement plans (PIPs) aren’t always necessary, Levitt notes, but they are an effective tool for employers to mitigate legal risks when building a case for just cause.
“A performance improvement plan is a nice formulaic way of doing that,” Levitt says, explaining that this level of detail can be critical in demonstrating the employer acted fairly and gave the employee every opportunity to succeed.
“It forces them to set out, here's what you have to improve, here's what's acceptable, here's what's not acceptable, here's the training we're going to be giving you, and here's a timeframe to improve.”
The Board noted that the employee’s conduct, while problematic, did not rise to the level of “egregious” behaviour that would justify immediate dismissal without warning, and that “Critically absent here was any warning that the Respondent’s job was in jeopardy if the Respondent continued to engage in the identified misconduct.”
Even within the framework of progressive discipline, Levitt adds, there is need for assessment of each case individually.
“You can progressively discipline someone 20 times – 20 warnings – and still never build up a case for cause if the stuff you're warning about just isn't that serious,” he says, adding that tenure matters as well, with long-serving employees generally entitled to more opportunities to correct their behaviour before termination will be deemed justified.
“If it's serious, one warning will do; if it's somewhere in the middle, two warnings will do. Every case is different.”
Heat of the moment and administrative details
The behaviours resulting in the employee’s termination on the spot culminated in statements implying he would start turning out poor product if he wasn’t given a raise, the Board heard.
Specifically, the employer alleged the employee said, when asked if he thought he deserved a raise: “If his quality of work was here before (with his hand at around his midsection level) it would be going down (lowering his hand to around the level of his knee) … if he didn’t get paid appropriately his quality would go from a higher to a lower point (using hand levels).”
The employee contested this, admitting he had an attitude that day but that the statements were made in a moment of frustration – he had complained about what he thought was insufficient training and too-high expectations.
The Board agreed with the employee, and Levitt explains that “heat-of-the-moment” statements will generally be treated as such by decision makers.
“The Labor Board said it was part of a heated moment where he said it in anger, and therefore it's not going to be treated seriously,” Levitt says.
“They thought that perhaps if he had cooled down and said it, they would take it much more seriously than said in the heat of an angry moment.”
Common employer mistakes in discipline and just cause
Not only should employers be sure to document infractions and misconduct, Levitt stresses, they must also follow through consistently, as a failure to do so sends employees mixed messages and severely weakens or even cancels out any previous PIP or disciplinary action.
“If you're going to give someone a warning and they do it again, you'd better act on it,” he says.
“Otherwise, you've waived being able to act on in the future.”
And, don’t be ambiguous; instead of saying an employee “may” be fired if they commit another infraction, use direct language.
“Don't create ambiguity. Don't create weakness. Don't create a range of possibilities,” he says.
“Don't give them wiggle room to get out of being discharged by what you've said yourself. Give them a real warning, not a possible warning.”
Wishy-washy warnings or failure to act on repeated misconduct can undermine the employer’s position, but being overzealous can also hurt their case, Levitt warns – acting out of anger applies to the employer, too.
“Just because they've got a warning doesn't mean every little minor misconduct is cause for dismissal,” says Levitt.
“If it's serious enough to be cause for discharge, give them a warning. They do it again, fire them. If it's close to the line the second time, say, ‘Look, you're going to get one more chance. You will be fired the next time.’ And then fire them the next time.”
